Page:Houghton Mifflin Co. v. Stackpole Sons (104 F.2d 306).pdf/2

Rh CLARK, Circuit Judge.

This is an appeal from the order of the District Court denying a preliminary injunction in an action to restrain infringe­ment of the copyrights claimed by the plaintiff in Adolf Hitler’s famous autobiographical and political treatise, “Mein Kampf.” Two rival American editions of this work, in translation, are now being actively sold and distributed in this country. The one published by the defendants appears without claim of copyright authority, on the theory that the work is in the public domain and not protected by copyright. The one authorized by the plaintiff, and actually published by Reynal & Hitchcock, Inc., through arrangement with the plaintiff, appears under claim of copyright assignment from the German publishers of the book. The court denied the preliminary injunction sought by the plaintiff on the grounds that the defendants had raised questions of title and validity as to plaintiff’s copyrights which were not free from doubt, and that the issues could not properly be determined on affidavits. The plaintiff appeals, asserting that on the admitted facts its legal right is sufficiently clear and its prospective loss is sufficiently great to entitle it to the injunction at this time.

In a case such as this, where two editions of a book of great popular interest are being actively promoted in competition with each other, it is obvious that much of the damage to a rightful owner of copyright, if any there be, will have been done by the time the action may be tried and final decree entered upon an accounting. Such owner needs protection now when the book is at the height of its sales, or else he may never be able to realize the fruits of ownership. Consequently it is settled in copyright cases that, if the plaintiff makes a prima facie showing of his right, a preliminary injunction should issue. American Code Co. v. Bensinger, 2 Cir., 282 F. 829, 835; L. C. Page & Co. v. Fox Film Corp., 2 Cir., 83 F.2d 196; Drone on Copyright, 516, 517. In our view, on such of the facts as are not in dispute, the plaintiff has so far established its right that it would be a denial of equity to allow the defendants under the circumstances to sell their book with impunity until the final outcome of the action.

The defendants do not dispute the fact that at the time of the hearing below they were about to publish and sell their edition of “Mein Kampf”; indeed, they admit this in their answer. They justify their conduct on two grounds: first, that the American copyrights issued in this case were invalid, because the author, Adolf Hitler, was “stateless” at the times they were issued, and second, that the plaintiff never acquired title to the copyrights. We shall discuss these claims in order.

First. A certificate of copyright registration of Volume 1 of “Mein Kampf” was issued by the United States Copyright Office in 1925 to Franz Eher Nachfolger G.m.b.H., of Munich, Germany, claimant of the copyright and publisher of the German edition of the book. In the application for the copyright, dated February 15, 1925, this publisher, in answer to the question on the application which read, “Country of which the author or translator is a citizen or subject,” replied, “Staatenloser Deutscher.” A certificate of copyright registration of Volume 2 of “Mein Kampf” was issued early in 1927 to the same concern. In its application dated December 24, 1926, the publisher answered this same question as to the author’s country with the word “Osterreich.” Defendants by extensive affidavits have produced evidence from German newspapers and other publications to the effect that on both occasions Adolf Hitler was a stateless person, a citizen or subject of no country, since, being born a citizen of Austria, he had served in the German army in the World War and had refused to respond to a call for service in the Austrian army. Plaintiff asserts its intent to offer proof at the trial that Hitler did not lose his Austrian citizenship, but, admitting for this motion that the author was stateless, nevertheless argues that the copyrights are valid, on the ground that a stateless person is entitled to the benefits of the American copyright laws.

This question must turn, therefore, upon our copyright statute. The statute particularly involved is Section 8 of Title 17, U.S.C.A., “Authors or proprietors, entitled; aliens.” Plaintiff relies on the broad grant of protection which it finds in the first sentence of this section, that “The author or proprietor of any work made the